11/23/88 Barry Flannery Et Al., v. Steven K. Lin Et Al.

Before proceeding to the issue raised on appeal, we must first discuss two preliminary matters. First, in their brief, plaintiffs cited to a document entitled "Respiratory Therapy Evaluation" in support of their position. Plaintiffs acknowledge that although this document is not part of the record, they have made a motion before this court for its inclusion in the record and appended a copy of the document to their brief. We granted plaintiffs' motion to supplement the record with certain interrogatories, not the respiratory therapy evaluation. Attachments to a brief not otherwise of record are not properly before a reviewing court and cannot be used to supplement the record. (Etten v. Lane (1985), 138 Ill. App. 3d 439, 442, 485 N.E.2d 1177, 1179.) We therefore decline to consider the respiratory therapy evaluation attached to plaintiffs' brief.

Defendant, Good Samaritan Hospital, appeals from an order finding it in civil contempt for failure to comply with a discovery order and fining it $100. Plaintiffs, Barbara and Barry Flannery, brought the underlying personal injury action against defendant hospital, Dr. Steven Lin and Dr. Jeanne Mercer which gave rise to the contempt proceedings. On appeal, defendant hospital contends that, because its code blue evaluation report was privileged under section 8-2101 et seq. of the Code of Civil Procedure (the Medical Studies Act) (Ill. Rev. Stat. 1987, ch. 110, par. 8-2101 et seq.), the trial court erroneously found it in contempt for its failure to disclose that document.

On January 10, 1977, Bridgit Flannery, who was approximately two months old, was brought to defendant hospital for treatment. While at the hospital, Bridgit developed pulmonary, respiratory, and infectious problems which caused her to suffer a respiratory or cardiac arrest. The lapse in breathing resulted in neurological damage to Bridgit.

On December 19, 1986, Bridgit's parents, Barbara and Barry, filed a four-count complaint against defendant hospital, Dr. Steven Lin and Dr. Jeanne Mercer. Counts I and III alleged negligence, and counts II and IV sought recovery under the family expense statute (Ill. Rev. Stat. 1987, ch. 40, par. 1015). Counts II and IV were dismissed with prejudice because the statute of limitations had expired for recovery under the family expense statute.

During 1987, written discovery proceeded on the remaining counts through the use of interrogatories and the production of hospital records. On July 10, 1987, the trial court ordered that all discovery be completed by October 30, 1987. On September 23, 1987, plaintiffs filed a motion to produce withheld records which included a request for a document entitled "Code Blue Evaluation Report." Plaintiffs discovered evidence of this report when they searched Bridgit's medical records on microfiche. The report had an opaque sheet placed over it to preserve its confidentiality. Defendant informed plaintiffs that the report would not be produced because it was privileged under the Medical Studies Act (Ill. Rev. Stat. 1987, ch. 110, par. 8-2101).

The hospital filed a response to plaintiffs' motion supported by the affidavits of Patricia Anne Farley and Cheryl Jackson. In the relevant part, Farley's supplemental affidavit states the following:

"1. She is Director of Quality Management at Good Samaritan Hospital and has knowledge of the facts stated herein;

2. She is familiar with procedures at Good Samaritan Hospital in the areas of Risk Management and Quality Assurance in January, 1977, and is competent to testify to the facts stated herein;

3. The Code Blue -- Evaluation Record regarding Bridgit Flannery was presented to a member of the ICU/CCU Committee ...

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